September 24, 2018

DMCA: An Avoidable Failure

In his new paper, Fred von Lohmann argues that the Digital Millennium Copyright Act of 1998, when evaluated on its own terms, is a failure. Its advocates said it would prevent widespread online copyright infringement; and it has not done so.

Fred is right on target in diagnosing the DMCA’s failure to do what its advocates predicted. What Fred doesn’t say, though, is that this failure should have been utterly predictable – it should have been obvious when the DMCA was grinding through Congress that things would end up like this.

Let’s look at the three assumptions that underlie the darknet argument [quoting Fred]:

  1. Any widely distributed object will be available to some fraction of users in a form that permits copying.
  2. Users will copy objects if it is possible and interesting to do so.
  3. Users are connected by high-bandwidth channels.

When the DMCA passed in 1998, #1 was obviously true, and #3 was about to become true. #2 was the least certain; but if #2 turned out to be false then no DMCA-like law would be necessary anyway. So why didn’t people see this failure coming in advance?

The answer is that many people did, but Congress ignored them. The failure scenario Fred describes was already conventional wisdom among independent computer security experts by 1998. Within the community, conversations about the DMCA were not about whether it would work – everybody knew it wouldn’t – but about why Washington couldn’t see what seemed obvious to us.

When the Darknet paper was published in 2001, people in the community cheered. Not because the paper had much to say to the security community – the paper’s main argument had long been conventional wisdom – but because the paper made the argument in a clear and accessible way, and because, most of all, the authors worked for a big IT company.

For quite a while, employees of big IT companies had privately denigrated DRM and the DMCA, but had been unwilling to say so in public. Put a microphone in front of them and they would dodge questions, change the subject, or say what their employer’s official policy was. But catch them in the hotel bar afterward and they would tell a different story. Everybody knew that dissenting from the corporate line was a bad career move; and nobody wanted to be the first to do it.

And so the Darknet paper caused quite a stir outside the security community, catalyzing a valuable conversation, to which Fred’s paper is a valuable contribution. It’s an interesting intellectual exercise to weigh the consequences of the DMCA in an alternate universe where it actually prevents online infringement; but if we restrict ourselves to the facts on the ground, Fred has a very strong argument.

The DMCA has failed to prevent online infringement; and that failure should have been predictable. To me, the most interesting question is how our policymakers can avoid making this kind of mistake again.

Comments

  1. Stephen Cochran says:

    It wasn’t important to congress that the DMCA worked. All that was important was that they were doing the bidding of their corporate sponsors, ensuring that the electoral gravy train rolled on.

  2. It’s also a mistake to assume that any kind of law will prevent — or is even intended to prevent — something from happening. Murder has been illegal for a loooooong time, but it’s not gone away; legislating against something may cut the number of instances down but it’s never going to stamp it out — people are, after all, people!

  3. I believe it’s true what Stephen wrote. Laws are less and less about the public good and are more about corporate strategy and/or a perceived public good, both of which are intended to bolster the coffers of relection.

  4. Techdirt rightly points out that politicians aren’t motivated in the same way that engineers or business people are. They sometimes care more about what makes them look good than what will actually work.

    Politicians are motivated by passing bills. They are motivated by the ability to reach a “compromise” among the different “sides”. Most of all, they are motivated by political pressure.

    During the negotiations over the DMCA, the technology/consumer electronics vendors were “carved out” by an exemption for manufacturers. The public interest groups in 1995 probably had a smaller constituency than they do today. So, to the politicians, a “compromise” meant carving out the manufacturers and doing what the content industry said they wanted. Therefore, the solution isn’t just doing a better job of explaining why the DMCA is tactically inefficient (although that doesn’t hurt). The solution is also to high-tech vendors from taking a carveout (since their market is diminished by the limitations in the use of their products), and to have a more active public interest / consumer lobbying voice.

    When I did volunteer public interest lobbying against the so-called SDMCA in Texas — a state-level bill that made it a crime to modify your computer in an unauthorized manner — the tech groups agreed not to take a carveout, and the tech and public interest groups continued to work together throughout the process.

    The solution isn’t just to prove that the DMCA doesn’t work — it’s to build strong political pressure, including industry and organized public interest groups.

    Adina Levin
    Director
    ACLU-TX Cyberliberties Project